Social
security has "field offices" all over
the country. To apply for benefits, you can go to
an office, call
1-800-772-1213 or apply on-line at www.ssa.gov.
For questions about Medicare you can go to www.medicare.gov
Free advice concerning eligibility for social security
benefits can be had from non-profit firms such as
Protection & Advocacy, Inc. In California their
toll free number is
1-800-776-5746. |
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SOCIAL SECURITY
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A typical consequence of traumatic brain injury (TBI) is disability,
unemployment and impoverishment, sometimes even bankruptcy.
Not everyone who suffers a TBI is in a position to file a successful
claim for workers compensation or personal injury, and those
who are so positioned must still wait years before receiving
a substantial cash award. In the interim, TBI survivors often
burden their families for loans and run up large credit card
debt paying their living expenses. To avoid going down that
road it makes sense for eligible survivors to apply for Social
Security benefits at the earliest possible time. Social Security
pays cash for living expenses and covers medical bills. |
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Social Security benefits are awarded and paid by the
federal Social Security Administration (SSA). To qualify
recipients must be a US citizen or a lawful permanent
resident. There are two main types of benefits: SSDI and
SSI. SSDI (Title 2) benefits are awarded to disabled workers
who worked long enough prior to injury to have paid the
necessary minimum of social security taxes into the social
security trust fund. Such persons must have worked at
least 5 years before date of onset of disability. The
longer they worked in the past, the higher the benefits
they will receive. As of 2002 the highest amount paid
was $1,698 per month. SSDI includes the cash benefit plus
Medicare. After you have been on SSDI for 2 years, Medicare
is provided premium free.
SSI (Title 16) benefits are awarded to disabled workers
with minimal or no work history who have highly limited
income and assets. The benefit payments are also small,
just $545 per month as of 2002. To qualify for SSI, the
claimant must have no more than $2,000 in cash or tangible
assets and earn less than the federal benefit rate, which
was $512 per month for an individual in the year 2000.
To reach that level of impoverishment, a person can transfer
their excess cash and tangible assets to a Special Needs
Trust that will hold title to them. SSI is awarded with
Medicaid. Some people qualify only for SSDI, some only
for SSI and some for both programs.
Obtaining SSDI is a time consuming process that can involve
setbacks and frustrations. The initial application takes
between 3-4 months to be reviewed, in part because the
agency must collect and read employment and medical records.
Sometimes the agency requires a medical or psychological
examination. While SSI starts the month after eligibility
is found on the basis of limited income and assets, the
agency imposes a 5 month waiting period for payment of
SSDI benefits. Applicants who do not prevail on the original
application can either reapply or go through a series
of appeals that can take 1, 2 or more years. It is better
to appeal, because if an appeal is granted, then back
benefits will be paid retroactive to the date of the original
application was filed.
In order to obtain SSDI the claimant must prove, to the
satisfaction of the SSA, the following: He is unable to
engage in any substantial gainful activity (SGA) as the
result of a severe impairment that is "medically
determinable" through objective testing procedures.
The SSA presumes you can engage in SGA if you are not
blind and earn more than a specified amount, which was
$780 per month as of 2002. The impairment may be physical
or mental, and must have lasted or be expected to last
at least 12 continuous months. SSA has a set of listed
impairments that are presumed to be disabling if they
meet a specified clinical level of severity. These include
leukemia, HIV, schizophrenia, epilepsy, heart disease
and major depression. Traumatic brain injury is not a
listed impairment.
For non-listing levels of impairment, the claimant must
show that he cannot return to any occupation he ever engaged
in during the past 15 years at SGA level. If the claimant
meets his burden of proof, SSA can only escape paying
benefits if it can prove the claimant could work at SGA
level on a full time basis in any occupation, even one
the claimant never worked in or desired to work in. Generally
the younger the claimant, and the more "subjective"
the symptoms, the harder it will be to establish disability
and the more likely it becomes that appeals will be necessary
to secure benefits. Claimants who are 50 years old or
older tend to get a more friendly and lenient reception
at SSA, in part because of the difficulty of such workers
being retrained for new employment in a rapidly changing
economy.
Claimants with TBI under age 50 are more likely to receive
benefits when they present with "objective"
signs of brain injury such as skull fracture, coma, positive
neuro-imaging and focal neurologic deficits such as lost
reflexes or muscle weakness -- all associated with severe
TBI. Claimants with "mild" TBI who present with
wholly subjective complaints (e.g. headache, dizziness,
imbalance, blurry vision, distractibility, forgetfulness,
slowed thinking, insomnia, fatigue, anxiety and depression)
will face greater obstacles getting SSDI; and a higher
level of persistence and perseverance will be required
of them. While this does not seem fair, it is a reality
of the administrative process. In such cases neuropsychological
testing and information supplied by family, friends, previous
employers and the claimant's treating physicians, can
make the difference. On rare occasions I have seen clients
with "mild" TBI obtain SSDI on the first application.
Other clients have prevailed after multiple appeals.
Claimants who qualify for SSDI get Medicare, while those
who qualify for SSI get Medicaid. Some people seek out
social security benefits primarily for the medical insurance
coverage that goes with it. It is a truism that people
who become disabled by TBI will lose not just their jobs,
but also their private health coverage. This is because
they do not have the funds to pay COBRA premiums, because
COBRA lasts just 18 months and because new health insurers
will often seek to exclude their pre-existing conditions
associated with the TBI or charge them exorbitant premiums
to cover them. Thus clients of our office who are disabled
by their TBI are encouraged to apply for Social Security.
Denial of benefits on the first application is common
across the country with the rates of denial varying from
state to state. The national average is 40% granted and
60% denied. If the claim is denied, the claimant should
file for "reconsideration." This preserves the
original date of application for payment of retroactive
benefits. On average reconsiderations are granted 17%
of the time and denied the other 83%. If the reconsideration
results in denial of benefits, the claimant should request
a hearing with an ALJ (administrative law judge) and retain
an attorney to represent him at the hearing. On average
the hearings occur about 2 years post-application. Nationwide
they result in 61% of applications being granted, 12%
being dismissed and 27% being denied. The next step is
to file with the Appeals Council. The final step is to
have your case reviewed by a federal judge in a United
States District Court.
Social security has "field offices" all over
the country. To apply for benefits, you can go to an office,
call 1-800-772-1213 or apply on-line at www.ssa.gov. For
questions about Medicare you can go to www.medicare.gov
Free advice concerning eligibility for social security
benefits can be had from non-profit firms such as Protection
& Advocacy, Inc. In California their toll free number
is 1-800-776-5746.
There are attorneys who specialize in social security
disability cases. They will typically tell you to apply
first on your own, and then contact them if your application
was denied. They can also give advice as to which social
security office in your state you should apply to, based
on their knowledge of how different social security offices
and administrative law judges respond. To obtain the best
possible social security attorney in your community you
should do your own research (including looking up the
attorney's discipline status on your state bar association
website), ask for client references, ask about the attorney's
certifications and find out what organizations he belongs
to. As of 2002 social security attorneys may charge a
contingent fee of up to 25% of back benefits paid with
a cap of $5,300. Our office has contacts with social security
attorneys in California and Oregon who understand TBI.
If benefits are awarded they are taxable only if you have
significant income in addition to your benefits. Benefits
are not guaranteed for a lifetime. SSA will periodically
re-examine benefits recipients at intervals related to
the severity of their condition. The period between re-exams
can be less than a year for people who are expected to
improve or as long as 10 years for people not expected
to improve. |
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